Separation of Church and State: Another Law School For You

WASHINGTON, January 21, 2018: From the adoption of our Constitution’s First Amendment, and even before, Americans have endorsed the concept that government should not be involved in the affairs of religion. The term that has been used to paraphrase that belief is “the separation of Church and State.” What it means is that government cannot make laws that favor one religion over any other in this country.

It also follows that our government cannot make laws related to the establishment of religion or that in any way encroach upon the free expression of religious beliefs. Yet since this principle became bedrock, our courts and our elected officials have continued to push the envelope.

Most Americans have a general understanding that church and state are supposed to be separate. Despite God’s past and present popularity in many quarters, from early days in our country’s formation to today, the concept that our government should not get involved in the religious activities of worshipers is generally accepted.

Church and State in America: A short history

In 1644, Roger Williams, the founder of the first Baptist Church in America and of Rhode Island as well, wrote a letter- much since quoted – offering his opinions about religion in the new world. Williams said opening a gap in the garden of the Church would result in the church becoming a wilderness.

When they (the Church) opens a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world… “

This idea eventually became bedrock belief in the then-British colonies, ultimately leading to the U.S. Constitution’s First Amendment, which was adopted in December 1791:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… (the Establishment Clause and the Free Exercise Clause).

Also found in the Constitution (Article 6):

No religious test shall ever be required as a qualification to any Office or public Trust under the United States.

Thomas Jefferson was later credited (a letter he wrote in 1802 to the Danbury, Connecticut Baptist Association) with coining the phrase “separation between church and state”:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

In 1868, the 14th Amendment to the Constitution was added. Pertinently here, this amendment extended the scope of the entire First Amendment to all levels of government, including states and state governments.

An uninformed jurist?

Perhaps his honor, Texas Judge Jack Robinson, did not get any of these memos. A woman was recently on trial in the judge’s courtroom, accused of trafficking a teen girl for sex. Robinson interrupted the jury’s deliberations to tell them that God told him the defendant was not guilty. His honor apologized to jurors for the interruption, but told them “when God tells me I gotta do something, I gotta do it.” The jury apparently defied God. They convicted the woman, and later gave her 25 years in prison.

Sample cases involving schools

A review of court cases over the years that have involved God, religion and the government’s role in religion must begin with what famously came to be known as the Scopes Trial, or the Scopes Monkey Trial.

Back in 1925, a Tennessee state law banned teaching evolution. The law required instead that schools teach a religion-based course on how we all got here.

John Scopes, a substitute high school teacher at a state-funded school, was charged with violating that law by teaching the “non-religious” evolution theory. The central issue of the trial essentially was whether “modern science” should be taught in schools. Ultimately, Scopes was convicted of violating state and was fined. But the verdict was later overturned on a technicality.

The Supreme Court in 1948 decided McCollum v. Board of Education and found that religious instruction in public schools was a violation of Church and State and unconstitutional.

In 1962 the Supreme Court held in Engle v. Vitale that any kind of prayer, composed by public school districts, even nondenominational prayer, was an unconstitutional sponsorship of religion.

Bible reading over a public school intercom was deemed unconstitutional in 1963 in the Court’s Abington School District v. Schempp case. Forcing a child to participate is a no-no.

In 1968, in Epperson v. Arkansas, the Supremes struck down a law prohibiting the teaching of evolution. Public schools may not conduct religious observances such as prayer.

Church rights

This past summer a Missouri church that had applied for a state grant to resurface its preschool playground was awarded that funding. A lawsuit seeking to bar the funding on separation of church and state grounds was initially granted but then overturned, reasoning that states cannot deny public benefits to religious institutions that are otherwise qualified.

In other words, churches should be allowed to receive government funding if the money is used for non-religious purposes.

As early as 1947 that concept was understood. The Supreme Court held in Everson v. Board of Education that the state of New Jersey paying for the transportation of students attending a private religious school was acceptable and not a violation of church and state principles. Justice Black recognized in his opinion activities that were indisputably marked off from the “religious function” of schools. In other words, bus transportation is not part of religion.

Continuing that theme, states can refuse to award scholarship funds to college students pursuing divinity degrees in preparation for the ministry. Government funding for religious instruction is a no-no. Locke v. Davey (2004).

Right to assemble?

Need a permit? Not if non-religious groups do not. States cannot require special permits for religious solicitation if they are not required for other types of group or association meetings or gatherings. Cantwell v. Connecticut (1940).

Religious beliefs?

Separation of church and state applies only to government, not private employers. Private companies can fire people who refuse to work because of their religious beliefs (Sabbath day, for instance). Thornton v. Caldor (1985).

But a Jewish chaplain in the Air Force was penalized for wearing a yarmulke (skull cap) in defiance of regulations. The Court held that the military’s interest in uniformity outweighed the individual’s right to free exercise of his religion. Goldman v. Weinberger (1986).

Oregon was allowed to deny unemployment benefits to someone fired from a job for illegally smoking peyote during a religious ceremony. The Free Exercise Clause does not excuse people from obeying the law. Employment Division v. Smith (1990).

Religious objects

A six-foot monument displaying the Ten Commandments placed with other monuments next to a Texas State Capitol would not lead an observer to conclude that the state endorsed the religious message. Van Orden v. Perry (2005).

Two large framed copies of the Ten Commandments in a Kentucky courthouse were determined not to be religiously neutral. Therefore, their placement in a courthouse violated the Establishment Clause. McCreary County v. ACLU (2005).

Interesting end-notes

While Texas Judge Robinson said he did what he had to do, in reality, he did what he wanted to do. So too did two Presidents. Only after they had purposely trampled the line between Church and State, they did not recuse themselves as the judge did.

Beginning with President George W. Bush and followed a decade later by President Obama, it seems those in power really can decide to do what they want to do by placing encroachments upon the separation of church and state principle.

Early in his Presidency, Mr. Bush created, by executive fiat (without congressional approval) the “Faith-Based and Community Initiative Program.” The goal was to enable religious organizations to provide compassionate care for the poor by receiving Federal grants on the same basis as other groups. Though an otherwise fine idea, the Bush program stood in naked violation of the First Amendment.

New York Times Opinion piece, December 30, 2002:

President Bush punched a dangerous hole in the wall between church and state earlier this month by signing an executive order that eases the way for religious groups to receive federal funds to run social services programs. The president’s unilateral order, which wrongly cut Congress out of the loop, lets faith-based organizations use tax dollars to win converts and gives them a green light to discriminate in employment. It should be struck down by the courts.

President Bush upended centuries of First Amendment law holding that government dollars could not be used to promote religion. He claimed the money would not be used directly to support religious activities. The reality, as the program rolled out over the next decade, was that religious people with the new government funding did indeed provide social services that included religious-based themes.

Black churches were mostly ignored under Bush’s initiative. The official explanation was that they couldn’t pull off the delivery of the social services.

President Obama tweaked the program and created the White House Office of Faith-Based and Neighborhood Partnerships, a taskforce made up of church-state “experts” from across “the ideological spectrum.” The taskforce identified numerous ways to strengthen the constitutional and legal footing of the social service partnerships.

Noted Joshua DuBois, then the executive director of the program:

Groups are reminded they must keep their religious activities entirely separate in time and location, from the services provided with federal funds. But they are not required to remove religious signs and symbols from their facilities or religious references from their names.

There are hundreds of examples of the violation of the concept of church and state separation. Hmmm. The lesson is that basically anything can be justified.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 703-761-4343, via email, or through his website.

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.

Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ http://www.samakowlaw.com/. He is also available to speak to your group on numerous legal topics.